Xing Hui Dong v. U.S. Attorney General , 538 F. App'x 881 ( 2013 )

Case: 13-10978 Date Filed: 10/22/2013 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-10978
Non-Argument Calendar
________________________
Agency No. A073-057-039
XING HUI DONG,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(October 22, 2013)
Before CARNES, Chief Judge, HULL and JORDAN, Circuit Judges.
PER CURIAM:
Case: 13-10978 Date Filed: 10/22/2013 Page: 2 of 7
Xing Hui Dong, a Chinese national, seeks review of an order of the Board of
Immigration Appeals affirming an Immigration Judge’s denial of his application
for political asylum and withholding of removal under 8 U.S.C. § 1158(b)(1) and 8
U.S.C. § 1231(b)(3)(A). On appeal, Dong argues that the BIA erred in finding that
he did not show that he suffered past persecution or had a well-founded fear of
future persecution.
I.
Xing Hui Dong fled to the United States after he and his wife violated
China’s one-child birth control policy. The couple had their first child in 1982 and
a second child in 1984. In 1985 Chinese family planning officials learned that
Dong’s wife was pregnant with a third child. They forced Dong’s wife to abort the
pregnancy and undergo sterilization. The officials also fined Dong and his wife
2,000 renminbi (RMB), or about $693, although Dong and his wife only earned 80
to 90 RMB per month.
Dong did not pay the fine, and family planning officials repeatedly came to
his home demanding payment. During one visit the officials struck Dong while
confiscating his television. He decided to flee China in 1989 and was admitted to
the United States that same year after paying smugglers $20,000 to bring him here.
His wife remained in China. Since he fled, officials have increased his fine twice.
2
Case: 13-10978 Date Filed: 10/22/2013 Page: 3 of 7
In 1995 it was changed to 30,000 RMB (about $3,625) and in 2010 it was raised to
150,000 RMB (about $22,000). The authorities still visit Dong’s wife on occasion
to try to collect the fine.
While in the United States, Dong has worked as a cook and held various
part-time jobs. The most he was ever able to earn in a single year was $20,000, but
his annual income has dropped to about $7,000 in recent years. He claims that he
works less frequently now because of his declining health. Dong has also acquired
several assets over the years. He purchased a duplex in 2001 for $40,000 in cash,
which he owns free of any liens. The duplex has an appraised value of about
$71,000. He also owns a 1998 Lexus that he estimates is worth about $2,000.
In Dong’s removal proceedings, the IJ initially granted him asylum on the
basis that he had a well-founded fear of future persecution. The IJ relied on the
fact that Chinese officials had attempted to collect the fine many times over the
years and had increased the fine “in a very unreasonable manner.” The
Department of Homeland Security appealed the IJ’s decision. The BIA reviewed
the IJ’s decision and determined that Dong had failed to establish past persecution;
however, it remanded the proceedings for further factfindings regarding Dong’s
current financial circumstances to determine whether the increased fine would
qualify as a severe economic disadvantage. On remand, the IJ determined that the
3
Case: 13-10978 Date Filed: 10/22/2013 Page: 4 of 7
fine would not cause a severe economic disadvantage and that Dong had thus not
established a well-founded fear of future persecution. Accordingly, the IJ denied
Dong’s asylum request. The BIA upheld that decision, and Dong now petitions
this court for review.
II.
“Where the BIA issues a decision, we review that decision, except to the
extent that it expressly adopts the IJ’s opinion.” Chen v. U.S. Att’y Gen., 463 F.3d
1228, 1230 (11th Cir. 2006). “Insofar as the BIA adopts the IJ’s reasoning, we
review the IJ’s decision as well.” Id. We review factual findings under a “highly
deferential” substantial evidence test, whereby we “must affirm the BIA’s decision
if it is supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1283–84 (11th Cir.
2001) (quotation marks omitted). We will reverse the BIA only if we find that the
record compels reversal. See Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th
Cir. 2002).
To establish eligibility for asylum, an applicant “must, with specific and
credible evidence, establish (1) past persecution on account of race, religion,
nationality, membership in a particular social group, or political opinion; or (2) a
well-founded fear of future persecution on account of a statutorily-protected
4
Case: 13-10978 Date Filed: 10/22/2013 Page: 5 of 7
ground.” Chen, 463 F.3d at 1231. 1 Demonstrating past persecution creates a
“rebuttable presumption” of a well-founded fear of future persecution, but without
this showing a petitioner “must demonstrate a well-founded fear of future
persecution that is both subjectively genuine and objectively reasonable.” Ruiz v.
U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th Cir. 2006).
Persecution is “an extreme concept requiring more than a few isolated
incidents of verbal harassment or intimidation.” Ruiz v. Gonzales, 479 F.3d 762,
766 (11th Cir. 2007) (quotation marks omitted). It may be shown from significant
physical abuse, see id., but “[m]inor physical abuse and brief detentions do not
amount to persecution.” Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1353
(11th Cir. 2009). Persecution is not limited to severe physical mistreatment; it also
includes severe economic sanctions. See In re T-Z-, 24 I. & N. Dec. 163 (BIA
2007). For example, fines may amount to persecution if they cause a “severe
economic disadvantage” considering an alien’s net worth, other sources of income,
and the conditions of the local economy. See id. at 173–74 (quotation marks
1
Forced abortion, sterilization, and punishment for resisting a forced population control
program qualify as persecution on account of political opinion under the Immigration and
Nationality Act. See 8 U.S.C. § 1101(a)(42)(B). A husband is not automatically entitled to
refugee status because his wife was subjected to a forced abortion or sterilization. See Yu v.
U.S. Att’y Gen., 568 F.3d 1328, 1332 (11th Cir. 2009) (per curiam). Instead, that husband must
show that he personally was persecuted, either by undergoing involuntary sterilization himself or
by resisting the coercive family planning policy. See id. at 1333.
5
Case: 13-10978 Date Filed: 10/22/2013 Page: 6 of 7
omitted). To satisfy that severe economic disadvantage standard, a fine should
reduce an alien “to an impoverished existence.” Id. at 174. However, an alien
does not need to demonstrate that the fine would cause “a total deprivation of
livelihood or a total withdrawal of all economic opportunity in order to
demonstrate harm amounting to persecution.” Id. at 173.
We conclude that substantial evidence supports the BIA’s determination that
Dong did not show past persecution or a well-founded fear of future persecution.2
Although Dong was struck by Chinese officials when they confiscated his
television, such “[m]inor physical abuse . . . do[es] not amount to persecution.”
See Kazemzadeh, 577 F.3d at 1353. Substantial evidence also supports the
conclusion that Dong’s fine does not amount to economic persecution considering
(1) he secured $20,000 to pay a smuggler to take him to the United States (when
the amount of his fine was under $700), (2) he currently owns a duplex, which is
free of liens and valued at $71,000, that he purchased in 2001 for $40,000 in cash,
(3) he owns a used Lexus automobile that he values at $2,000, and (4) he has
earned an annual income of $7,000 in recent years. Although we note that the
increase in Dong’s fine is substantial, his financial assets still support the
2
Dong argues that the IJ committed reversible error by not reevaluating his past
persecution claim on remand. We do not agree. The additional evidence that Dong presented to
the IJ on remand was not sufficient to compel a finding of past persecution.
6
Case: 13-10978 Date Filed: 10/22/2013 Page: 7 of 7
determination that the larger fine would not reduce him to “an impoverished
existence.” Accordingly, we cannot say that the record compels reversal. See
Fahim, 278 F.3d at 1218.
PETITION DENIED.
7